March 19, 2010

In Which I Defend Myself From Accusations Of Weenieness

Marco Randazza at Legal Satyricon linked to my analysis of the Ninth Circuit’s recent decision in Newdow v. Rio Linda USD. A commenter there named “Alan,” however, takes issue with not only my prohibition against anonymous commenters (for reasons which will become apparent in a moment) but also with my admitted decision to not make a very public spectacle of my objection to the contents of the Pledge when interacting with my clients:

OK, really, stop being such a weenie with your “aspirations for the bench” (see About Me) and “I stand silent”. This is exactly why the unmoral majority can run ruff-shod you and everyone else–BECAUSE YOU ARE TOO MUCH OF A WEENIE TO STAND UP FOR YOUR OWN RIGHTS. If you want things changed, you have to take it to the streets, the schools, the convention halls, NOT THE COURTROOM. When the pledge gets recited, ACT UP. Make it clear you object to the words “under god”. Instead, SHOUT OUT, at the TOP OF YOUR LUNGS, “…one Nation, NOT UNDER ANY GOD,…” That will make it clear you will not be bullied. If enough people are willing to act up and make a scene, people will stop saying the offending words, and we’ll be back to simply, “indivisible”. Until then, don’t ask someone else to stand up for your rights when you are not willing to fight for them yourself. How un-American.
Alan, I don’t know why having aspirations for the bench makes me a weenie.

I also don’t know why registration and posting under even a pseudonym on Blogger (when I can plainly see that you are able to thus post on Wordpress) is such a great burden that you feel the need to challenge me here. But, as you can see, I have posted your remarks on my own blog anyway so as to spare you this tremendous burden.

I categorically reject your notion that courtrooms are not appropriate places to seek vindication of individual rights. I can appreciate that for some kinds of efforts, a democratic appeal can also be effective and can produce better results. But that does not mean that someone who files a lawsuit to assert their rights is doing anything wrong or even necessarily anything counterproductive -- and given that atheists are the most despised minority in the United States today, a democratic appeal on its own is not something that seems calculated to achieve success.

Even the civil rights movement of the 1950’s and 1960’s adopted a blended approach of democratic and judicial activities, and without judicial successes, the democratic efforts would likely have failed.  It took the leadership of the courts to articulate the moral wrong of Jim Crow laws, and only then did the democratic systems of the various states, and the attitudes of the public as a whole, respond and change.  Courts are entirely appropriate places for people to assert their rights. That's why we have them. We've seen what happens when the basic human rights of disliked minorities are put to a popular vote.

I view your criticism of my choice of presenting a politically palatable public face to my clients and my community despite my objection to something they find of great symbolic importance in the same way I would view you for criticizing a soldier for going to war and not earning a Bronze Star for valor in combat. Just because the soldier didn’t earn a Bronze Star doesn’t mean he didn’t do his part or that he wasn’t brave.

Let's take Michael Newdow, the plaintiff in the case we're talking about.  Michael Newdow is fortunate enough to be not only scary smart but also to have a non-legal career (emergency medicine) in which his skills and services are in high enough demand that he doesn’t need to worry about losing his patients (who don't select him, since he does emergency medicine) or have hospital privileges based on his political activism (since a hospital is not legally allowed to deny privileges to a doctor based on his religious or political beliefs and good doctors are scarce enough that no sensible hospital would do that anyway). Nor does Newdow have to help support a staff working in an office dependent on his work -- particularly a staff of people who never chose to sign up for a political fight and some of whom disagree with his political beliefs. In other words, Newdow's circumstances provide him with substantially more buffer from bigoted economic retaliation than mine do. Newdow also has a flexible enough schedule to allow time for him to pursue these goals. And he’s got the energy and passion and interest and intellectual ability to capitalize on those good circumstances. Good for him -- and he absolutely deserves the equivalent of a Bronze Star for valor in the fight to enforce the Constitutional rights of all Americans despite the unpopularity of his efforts.

By the way, I didn't "ask" Michael Newdow to take up the fight he did.  He did that on his own.  I applaud him for doing it, but he did not do it at my request, either explicit or implied.

I am not so fortunate as Michael Newdow. I reject your accusation that I am somehow morally deficient for not having those advantages. Maybe if I were independently wealthy, not dependent for my prospects for career advancement and regular income (nor responsible for providing for the income of others) on unsophisticated clients who would likely be deeply, deeply offended were I to do as you urge me to do, I might just be as brave as Michael Newdow and do the things he does. But I’m not in that position, so I’ll have to satisfy myself with the role of an "ordinary grunt" in this fight instead.

Maybe you think that’s somehow an unacceptable moral compromise. I don’t.

Alan, I can see that you find my manner of advancing my ideas and articulating arguments somehow insufficient and worthy of condemnation -- but so what? As I see it, I can’t do anyone any good if I’m broke and out of work and can’t even afford internet access. Each of us has to navigate the world as best we can and sometimes that means making compromises and foregoing certain benefits in favor of others.

I rather doubt you can honestly tell me you’ve never had to make compromises in your life that have left you dissatisfied. That's called "life."  The very difficulty of navigating those kinds of necessary choices is precisely why the "Bronze Star winners" are so praiseworthy.

I'll not apologize for anything, because I’ve neither done nor failed to do anything which would merit an apology -- and even if I had, I nevertheless owe you nothing.

I’ll ask instead -- what have you done, Alan, to fight this deviation from the Constitution’s spirit and text? How have you stood up to voice your objections? Have you filed any lawsuits? Have you protested during recitals of the Pledge, standing up and shouting that there is no God? Have you written a letter to your Congressional representatives? Have you even created a blog and anonymously (or pseudonymously, as I have done) articulated an objection so that at least the idea can be floated out there for others to consider? Indeed, I notice that your single comment on a blog linking to mine as “Alan” fails to fully identify you even as you condemn me for not identifying myself.

It’s easy for someone like you to hide behind the anonymity of the internet, complain when perfect anonymity is denied you, and then call me a weenie for availing myself of the benefits of using a pseudonym and the discretion to keep my thoughts to myself when it is politic to do so.  You're not sitting in my shoes.  But from where I’m sitting, I don’t see any of your critiques of the Ninth Circuit decision anywhere on the internet. I don’t see evidence of your protesting at your town hall meetings or making democratic appeals to change the Pledge of Allegiance to a form that non-theistic Americans can endorse as heartily as theistic ones. Unless you can point to some evidence that you have done the sorts of things that you condemn me for not doing, then I say that you’re at least as big a weenie as you accuse me of being.


bobvis said...

> SHOUT OUT, at the TOP OF YOUR LUNGS, “…one
> Nation, NOT UNDER ANY GOD,…”

[rolls eyes]

Is this person 17? Is the core problem that atheists aren't really sufficiently obnoxious?

Frankly, there is blogworld, and there is the real world. Blogworld is where we go and state our beliefs clearly and explicitly. It's where those of us who don't really have the guts to go to political protests where there are going to be arrests do our part to each other.

When it comes to the real world, I will unapologetically act in ways that show disrespect to my core values. Frankly, I go further than TL and say the under-God part too. When I am with a group of people praying to Jesus, I close my eyes and put my head down along with them. If I get racially profiled, I practice looking non-criminally and move on.

Rosa Parks got her gold medal because she was *unusual* in going out of her way to defy an established standard of behavior. It isn't fair to blame all black people before her complicit in their own treatment.

I actually wonder if the comment wasn't written sarcastically. If he is serious, he needs some perspective. Most of us do actually value our personal relationships and our careers over light tramplings of even our core beliefs. There's nothing wrong with that. It's just choosing what is important to you.

Ken said...

That was a vastly more serious and extensive response than his adolescent rant deserved.

Dan said...

Would you take Alan's advice if I double-dog dared you?

Transplanted Lawyer said...

Bob -- seems to me he was being (for lack of a better word) sincere.

Ken -- you're correct, but writing it made me feel better.

Dan -- no I will not, even if you triple dog-dare me.

fourth said...

I enjoyed the post, but I think you are overstating your case on how the First Amendment was supposed to operate.

See my comment to your earlier post on this topic for why.

Transplanted Lawyer said...

As to that point, Fourth Branch, please see Everson v. Board of Education, 330 U.S. 1 (1947). Justice Thomas rejects the idea of incorporation of the Establishment Clause, I know, but he is wrong and he's also all by himself in that theory -- not even his Brother Justice Scalia will join him in that reasoning. The Fourteenth Amendment was intended by its Framers to limit and restrain the powers of the several States. Perhaps I'm guilty of intellectual shorthand and should say that state-level Establishments violate the Fourteenth Amendment insofar as it incorporates the First Amendment rather than just saying that they violate the First Amendment. But in resorting to that intellectual shorthand, I'm in pretty good company.

The Fourth Branch said...


I certainly understand the argument for incorporation through the 14th Amendment, but it requires that one totally skip the actual text of the Establishment Clause to conclude it has been incorporated against the states ("Congress shall make no law..."). I do know it is now "settled law" that the Establishment Clause applies to states as well. My point isn't that we should overturn Everson, but to point out that traditionally "liberal" arguments about how the Establishment Clause was meant to function skip over an awful lot of history and tradition to the contrary.

The history of incorporating the Establishment Clause against states is only about 60 years old, making it relatively new. Courts continue to struggle with how to apply the Establishment Clause (including the Supreme Court with its 3 various standards for finding Establishment Clause violations) at a federal level, let alone the state level.

I point this out because I think your analysis skips over all history and tradition that doesn't support your conclusion and focuses only on what does. This is an extraordinarily complex topic. In the end, I think Newdow splits the difference about right- people must be permitted to "opt out" of reciting the pledge (if done correctly, it would mitigate the coercion factor Kennedy uses to find violations), but the words themselves don't need to change.

zzi said...

"Perhaps I'm guilty of intellectual shorthand . . ."

You would never be accused of explaining yourself in a short handed fashion.

I have the simplest pasta sauce recipe, but first I have to find it.

zzi said...

found it! no cooking from America's Test Kitchen

Pasta with Tomato and Almond Pesto (Pesto Alla Trapanese)

Saw it here but you have to register. But you should toast almonds.

Transplanted Lawyer said...

Hey, that pesto sounds really good, zzi. Thanks! I'm gonna take back some of the things I said about you.